Justice Watch: The Alliance for Justice Blog

March 2012

The Judiciary Committee reported three nominees to the Senate floor at its Executive Meeting Thursday morning. Committee votes on Richard Taranto to fill an appellate seat on the Federal Circuit and Robin Rosenbaum to fill a seat in the Southern District of Florida were supposed to be taken on March 15. However, due to the failure of sufficient committee members to appear on that day (seven of the Democratic committee members were present, but Ranking Member Senator Chuck Grassley (R-IA) was the only Republican to appear), the Committee was two members short of the quorum required to do business.

While they were still waiting to see if more members would show up, Senator Grassley noted that if a quorum was established he would be requesting that consideration of Taranto and Rosenbaum be delayed for a week. Chairman Patrick Leahy (D-VT) noted that he and Senator Grassley had discussed establishing a process whereby business meetings held for the sole purpose of invoking the extension of consideration of nominees could take place without a quorum, but that other Republican members of the Committee had objected.

Before recessing the meeting where no business had been able to take place, Senator Leahy stated, “The Republicans requested this meeting, even though it would be a pro forma type of thing. They seem to be boycotting the meeting.”

The same thing happened at the regularly scheduled business meeting of the Judiciary Committee the following week, March 22, when Taranto, Rosenbaum, and Gershwin Drain, nominee to the District Court of the Eastern District of Michigan, were scheduled to be considered. Eight of the Democratic Committee members sat and waited; they were two members short of a quorum. Twenty-six minutes after the meeting was scheduled to begin, Senator Grassley arrived, but no other Republican members came.

When Senator Leahy again noted that it appeared that the Republican members were boycotting the committee, Senator Grassley responded that he was not aware of a boycott attempt, but acknowledged that it would be unlikely that any other member of his caucus would appear and allow the committee to conduct its business. Senator Leahy recessed the committee after stating that he would convene it later that afternoon off of the Senate floor when a series of votes were scheduled to take place. That meeting did occur, and the Republican committee members invoked the automatic week’s extension, with the result that no action to move the nominations process forward occurred.

A quorum did appear on March 29. Taranto and Rosenbaum were reported out of Committee on voice votes with only Senator Lee opposing them. A roll call vote was held on Drain, resulting in a party-line vote of 10-8. Five other listed nominees – one to a Circuit Court seat and four to District Court seats – were held over. Since the Senate is leaving on recess after this week, these five judges – William Kayatta, Jr. to the First Circuit, John Fowlkes, Jr. to the Western District of Tennessee, and Kevin McNulty and Michael Shipp to the District of New Jersey – will not receive consideration by the Committee to be advanced to the Senate floor for confirmation until April 19 at the earliest.

In addition to many other tactics to delay, slow-walk, and obstruct the nominations process – tactics that range from refusing to review background materials in a timely manner, to failing to return blue slips, and to filibustering consensus nominees – Republicans in the Senate are also shirking their Constitutional duty to advise and consent by refusing to show up and let the Committee conduct its business. While they are playing the politics of obstruction, justice for millions of ordinary people is being delayed and denied due to a judicial vacancy crisis that has 1 in 10 seats on the federal bench empty.For each day that the nominations process is stalled in the Senate, Americans across the country are prevented from having their day in court.

This week, the Senate incrementally moved forward with its responsibility of confirming appointees to the federal bench in the midst of a judicial vacancy crisis that has left 1 in 10 seats empty. Three District Court nominees had their Senate Judiciary hearings, three were reported out of committee to await their confirmation votes on the Senate floor, and two were confirmed as part of the deal on confirmation votes struck earlier this month between Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY).

On Wednesday, the Senate voted to confirm United States District Court nominees Miranda Du to serve the District of Nevada by a vote of 59-39 and Susie Morganto serve the Eastern District of Louisiana by a vote of 96-1. It took 147 days for Du, and 140 days for Morgan, to receive their confirmation votes after being reported out of the Judiciary Committee. Two hundred and forty days passed from the date of Du’s nomination to her confirmation to fill an emergency judicial vacancy; the time was even longer for Morgan, who was in the Senate process for 296 days.

Earlier that day, hearings were held for District Court nominees Michael Shea, Gonzalo Curiel, and Robert Shelby nominated to the District of Connecticut, the Southern District of California, and the District of Utah, respectively. The hearing was chaired by Senator Richard Blumenthal (D-CT); Ranking Member Senator Chuck Grassley (R-IA) and Senator Mike Lee (R-UT) were also in attendance. President Obama appointed Curiel and Shelby on November 10 and November 30 last year, respectively; Shea was appointed on February 2 of this year. The hearing was non-controversial. Now, they await consideration by the Committee and a vote to report them to the Senate floor, where the waiting process for a confirmation vote will begin. While Shea, who was nominated on February 2 of this year, had to wait 56 days from nomination to the time of his hearing, both Curiel and Shelby had to wait twice as long to take the next step forward in the confirmation process. Curiel, nominated on November 10, 2011, waited 140 days for his hearing. Shelby, nominated on November 30, waited 120 days.

The Judiciary Committee reported three nominees – Richard Taranto, Robin Rosenbaum, and Gershwin Drain – to the Senate floor on Thursday. They join 15 other judicial nominees who are awaiting confirmation by the Senate before they can assume their seats and being to serve people by dispensing justice in our nation’s federal court system. As the Senate is leaving town for a two-week recess, no further action will take place to confirm judges until April 16, when a vote on the nomination of Stephanie Dawn Thacker to the Fourth Circuit Court of Appeals is scheduled to take place.

By the Numbers3 District Court nominees had hearings before the Senate Judiciary Committee

The case arises out of a series of Initial Public Offerings (IPOs) during the tech bubble of the late 1990s. The plaintiff, Vanessa Simmonds, was an investor who owned tech stocks underwritten by Credit Suisse and other investment banks. Simmonds alleges that underwriters for these IPOs manipulated stock prices using short-swing transactions in violation of the insider trading laws.

The main issue before the Supreme Court was whether the insider trading law’s two-year time limit to bring suits begins to run when the profit is realized by insiders or when the required public disclosures are filed. Credit Suisse argued that actions must be brought within two years of the profits being realized and therefore Simmonds’ suit was time-barred. Simmonds argued that because insiders never filed the required disclosures when the profit was realized, the two-year limitations period never began to run. The district court dismissed the complaint on the grounds that the two-year limit had expired, but the Ninth Circuit agreed with Simmonds and reversed.

Yesterday, the Supreme Court, reversing the Ninth Circuit, held that the two-year statute of limitations continues to run, even when corporate insiders have failed to make the public disclosures that would give notice of the insider trading. While leaving open the possibility that traditional equitable tolling principles could apply in a case like this, the Court has nonetheless made it easier for corporate insiders to avoid liability for their illegal insider trading activity by simply violating the disclosure requirement.

A Question of Integrity received a bronze award in the category of Non-Broadcast Productions – Charitable/Not-for-profit.The Telly Awards honor excellence in non-broadcast and online video, as well as local, regional, and cable TV commercials. Bronze and silver awards are given in each category.

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